Case Law Details
Neeru Dhir and Ors. Vs Kamal Kishore Dhir and Ors. (Delhi High Court)
Conclusion: Suit ought not to have been rejected outright under Order VII Rule 11 CPC on the ground that the pleas taken by the appellants/plaintiffs were barred under Section 4(3) of the unamended Benami Act. It would therefore be imperative to weigh the evidence in the instant case for the court to conclusively decide as to whether the appellants/plaintiffs can succeed in their claim that the respondent No.1 was holding the suit premises in a fiduciary capacity, for the benefit of all the family members.
Held: The three plaintiffs being the widow, son and daughter of late Anil Kumar Dhir, had instituted this suit for partition of Property at Delhi and for permanent injunction restraining the defendants from alienating, encumbering or parting with possession of the said property, against the four brothers, three sisters and heirs of another two sisters, of Anil Kumar Dhir pleading that R.P. Dhir father of Anil Kumar Dhir during his service period was living in government accommodation along with his wife and children and in the year 1966, from his own resources and earnings, “for the welfare and benefit of the family” purchased the land underneath the suit property from Delhi Development Authority (DDA) and in the year 1977 built a single storeyed house thereon however at the time of allotment and execution of documents, R.P. Dhir and the the defendants decided that “for the convenience sake the title documents/allotment etc. be got executed in the name of the eldest son namely K.K. Dhir i.e. defendant no.1”; (v) thus the suit property was got allotted in the name of defendant no.1; the defendant no.1 from time to time, in various letters had admitted the said fact. Also, the three plaintiffs alone were residing in the property and paying charges for electricity, water and telephone therein. Defendant no.1 contended that after the demise of R.P. Dhir all his sons were co-owners of the property and applying to DDA for converting the leasehold rights in the land underneath the property into freehold in his own name which the plaintiffs objected. In the meantime, the defendants filed separate applications under Order VII Rule 11 CPC praying inter alia for rejection of the plaint on several grounds, including the ground that the predecessor of the parties i.e., Shri R.P. Dhir did not own any property; that there was no Hindu Undivided Family; that the suit instituted by the plaintiffs was barred by limitation and that the same was also barred by the Benami Transactions (Prohibition) Act, 1988 (in short ‘the Benami Act’). Plaintiffs contended that the suit instituted clearly fell within the ambit of the exception carved out under Section 4(3) of the unamended Benami Act. Further, they contended that since the suit was instituted in February, 2016, amendment of the Benami Act w.e.f. 01.11.2016, whereby sub-section (3) of Section 4 was omitted, would hardly be of any significance as the said sub-section was in currency when the suit was instituted and therefore, the exception carved out in the said provision, entitled the plaintiffs to take a plea that the suit fell within the purview of the said sub-section.It was held that where it had been asserted that the suit premises was purchased in the name of the respondent No.1, but from the exclusive contributions made by late Shri R.P. Dhir and therefore in reality, was meant for the benefit of all the family members, the real test would be the source from which the purchase money came from, the nature and status of possession of the property after its purchase, the motive if any for giving the transaction a Benami colour, the position of the parties and their inter se relationship, between the appellants/plaintiffs and the defendant No.1, the overall conduct of the parties in dealing with the suit premises after it was acquired, etc. [Refer: Jaydayal Poddar (Deceased) through LRs and Anr. vs. Mst. Bibi Hazra and Ors. reported as (1974) 1 SCC 3]. There was no occasion for the court to determine as to whether the respondent No.1 stood in a ‘fiduciary capacity’ vis-a-vis his deceased brother, Shri Anil Kumar Dhir, predecessor-in-interest of the appellants/plaintiffs. On perusing the averments made in the plaint, it could not be said at this stage that the suit was barred by Benami Act.It would therefore be imperative to weigh the evidence in the instant case for the court to conclusively decide as to whether the appellants/plaintiffs can succeed in their claim that the respondent No.1 was holding the suit premises in a fiduciary capacity, for the benefit of all the family members. The suit was restored to its original position for being taken further from the stage at which the impugned judgment was passed.
FULL TEXT OF THE HIGH COURT ORDER /JUDGEMENT
1. The appellants/plaintiffs have questioned the judgment dated 05.2019, passed by the learned Single Judge dismissing a suit for partition and permanent injunction instituted by them against the respondents/defendants claiming that they are collectively entitled to 1/10th undivided share in the residential premises bearing No.C-324, Vivek Vihar, Delhi.
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